Same-sex marriage (SSM) in New Mexico:

2013-AUG:
Golden Rule wins, in a case
involving
a business & a same-sex couple
at the
New Mexico Supreme Court (Cont'd).

2013-AUG-22: A conflict between Elane Photography and a same-sex couple from Taos, NM. (Cont'd):

In 2006, Elaine Huguenin, owner of Elane Photography in Albuquerque, NM, ran afoul of New Mexico's human rights law when she was asked by Vanessa Willock to provide photographic services at a same-sex commitment ceremony in Taos, NM. In New Mexico, loving, committed same-sex couples could not marry, could not enter into civil unions and could not enter a domestic partnership. The state regarded them as simple roommates, as "legal strangers." It did not recognize their relationship, and granted the couple and their children no protections or benefits. It was only in 2013-AUG that same-sex couples were allowed to marry in New Mexico.

A commitment ceremony has no significance in law. It brings no special legal protections or state benefits or federal benefits to the couple. It has the status in law of a "sweet 16" party, or a party to celebrate a baptism. However, it is very personally significant to the couple, and to many of their relatives and friends.

Elane Photography is considered a "public accommodation" under human rights laws in the state, because it offers its services to the general public. Elaine refused the request to take photos at the ceremony, explaining to the potential customer:

"The message a same-sex commitment ceremony communicates is not one I believe."

It seems that Elaine Huguenin would have had no problem photographing a family gathering involving one or more same-sex couple. But they believed that marriage must be restricted to the union of one woman and one man. The commitment ceremony, even though it has no significance in law, appears to have been too similar to a marriage in her eyes.

The same-sex couple appears to have been offended by the display of discrimination and lodged a complaint with the state Human Rights Commission. Elane Photography took the position that photography is an expressive art form. Thus they have a right guaranteed by the First Amendment to the U.S. Constitution to seek customers from the general population, and then refuse to provide their services to a potential customer on any basis -- their race, religion, gender, sexual orientation, gender identity, age, disability, country of origin, etc.

In 2008, the New Mexico Human Rights Commission compared the incident with Section 28 of the New Mexico Human Rights Act (NMHRA):

New Mexico statutes and codes, Section 28-1-7, subsection F states:

" It is an unlawful discriminatory practice for ... any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation." 1

Section 28-1-2 defines the term "public accommodation:"

" 'Public accommodation' means any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private." 2

The Commission concluded that Elane Photography had violated the code by refusing to photograph the ceremony. During 2012-JUN, the New Mexico Court of Appeals upheld the Commissions ruling, They subsequently appealed the case to the Supreme Court of New Mexico.

Heritage.org reports that a number of groups submitted Amici Curiae briefs in support of Elane Photography:

The Cato Institute argued that, under the First Amendment, photographers have freedom of speech protections against government-compelled artistic expressions.

The Becket Fund argued that New Mexico’s Religious Freedom Restoration Act protects the “free exercise” of Elane Photography of discrimination based on sexual orientation.

The Alliance Defending Freedom -- the lawyers defending Elane Photography -- also argued that the First Amendment’s free exercise clause protects their client's right to discriminate against minorities. 3

In contrast, the American Civil Liberties Union argued that:

"... taking photographs for hire is a commercial service subject to commercial regulation. A commercial business cannot solicit customers from the general public to buy its services as a photographer for hire and then claim that taking those photographs is a form of its own autonomous expressive activity." 4

Owners Elaine and Huguenin testified that photographing the ceremony would have conflicted with their fundamental religious tenets towards sexual orientation, and given the impression to others that they supported same-sex marriage.

2013-AUG-22: Decision of the New Mexico Supreme Court:

The Supreme Court of New Mexico issued its ruling which supported the Human Rights Commission's decision. It found that Elane Photography had violated the Human Rights Act. 3 The court stated:

"When Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races."

"Even if the services it offers are creative or expressive, Elane Photography must offer its services to customers without regard for the customers’ race, sex, sexual orientation, or other protected classification."

The Alliance Defending Freedom said that the court's decision amounted to government-enforced coercion. They wrote:

"This decision is a blow to our client and every American’s right to live free [sic]."

Unfortunately, Heritage.org did not mention the impact that the Human Rights Commission's ruling had on Elane Photography in 2008. In some -- perhaps most -- similar cases involving wedding cake bakers, marriage organizers, etc. the businesses experienced a massive increase of business from customers who preferred to deal with a company that discriminates against the LGBT community. The increased profit more than compensated for the fines they had to pay.

Brian Brown is the president of the National Organization for Marriage -- a group whose main aim is to prevent marriage equality across the U.S. He wrote about the New Mexico Supreme Court's decision:

"This decision is outrageous. While simultaneously admitting that this decision will harm the Huguenins, the court uses its full power of coercion to force them to compromise their beliefs. This is not what this country was founded upon; governmental coercion has no place in the public square never mind the freedom of religion supposedly enjoyed by the Huguenins. ... While the court calls for compromise, they got it wrong in this case. The Huguenins should not have to compromise. Their beliefs are constitutionally protected. But the Willocks could easily have compromised by going to another photographer who would not have had such a conflict. Instead the Willocks forced the issue and used the power of the court to put the Huguenins in an impossible position - compromise their beliefs or give up their livelihood. There is nothing just about that. ... People of faith should not be coerced to denying their beliefs or losing their livelihoods. There are plenty of photographers ... who would happily serve same-sex ceremonies. However, same-sex 'marriage' activists are not concerned with getting service, but instead forcing Americans of faith to compromise their beliefs and support something they know is objectively wrong." 5

The Family Research Council (FRC), which has been designated by the Southern Poverty Law Center as an anti-gay hate group, 6 published an article about Elane Photography by Ken Klukowski, the Director of the Center for Religious Liberty. It is titled:

Somehow, according to the FRC, The Foundry blog at www.heritage.org, and many other conservative web sites, the request by Vanessa Willock to provide photographic services at a same-sex commitment ceremony in 2006 -- seven years before the first same-sex couple married in New Mexico -- has been changed into photographic coverage of a same-sex marriage ceremony.

Klukowski wrote that:

"A recent Rasmussen poll showed that 85% of Americans support the right of a religious photographer not to participate in a gay-marriage ceremony." 7

Key factors to remember in this case:

Important factors are:

Same-sex marriages are currently being solemnized in New Mexico. However, their legal validity was unclear until the New Mexico confirmed their legitimacy in an unanimous decision on 2013-DEC-19. 8

The ceremony that involved Elane Photography was an informal commitment ritual, not a same-sex marriage. It had no significance in New Mexican law in 2006, and would have no legal significance if it were repeated today.

The owners of Elane Photography were prosecuted for their discriminatory actions, not for their religious or other beliefs. The First Amendment of the U.S. Constitution guarantees freedom of religious beliefs, but does not necessarily guarantee the freedom of actions motivated by those beliefs. So, for example, a parent's religious belief might include their reliance on God to cure their child of any sickness. However if the parent acts on this belief by denying medical attention to her child, she may be prosecuted if the child dies.

Under the New Mexican human rights law, public accommodations like Elane Photography are not allowed to discriminate against potential customers on the basis of their gender, race, nationality, religion, sexual orientation, etc.

Suppose the company agreed to take photographs of an interracial marriage. That would not indicate that the company owners approved of such marriages:

They might support both interracial and same-race marriages.

Alternately, they might be opposed to interracial marriages on religious grounds, but accepted the contract because they are compelled to do so by the state human rights law which requires them to not discriminate on the basis of race.

There is no way to determine which is true without asking them, or by analyzing statements that they might have said about interracial marriage. The same reasoning applies to same-sex ceremonies of all types: commitment ceremonies, civil union ceremonies, and -- more recently -- marriages by same-sex couples.

The Golden Rule is found in all world religions, and is considered a major rule of behavior for all Christians to follow. The owners of Elane Photography are evangelical Christians. If they wished to honor the Golden Rule then they would treat others -- including a lesbian couple -- as they would wish to be treated themselves. If the owners were themselves going to be married, and asked another photographer to photograph the ceremony, it is highly probable that they would want the latter to agree. Thus, if they wanted to follow the Golden Rule, they are required to treat the lesbian couple in the same way that they would want to be treated. From the media accounts, they decided to not follow the rule.

"National Organization for Marriage Denounces the New Mexico Supreme Court's Decision to Force People of Faith to Compromise Their Religious Beliefs," National Organization for Marriage, 2013-AUG-22, at: http://www.nationformarriage.org/ This is probably a temporary listing.

From the Winter 2010 issue of the Southern Poverty Law Center's (SPLC) Intelligence Report. The SPLC monitors racist, anti-gay, nativist, and other hate groups in the U.S.